The recent Fair Work Commission (Commission) decision in Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 has confirmed that employers may reject an employee’s medical certificate if it is too vague to enable them to discharge their legal obligations following a long period of absence.
Background
In June 2016, Mr Gadzikwa, commenced a period of unpaid personal leave with the Department of Human Services (DHS) due to a mental health condition. Mr Gadzikwa did not return to work, save for three days in September 2016.
In late 2017, DHS informed Mr Gadzikwa that his unpaid sick leave would come to an end in January 2018, and sought proof that he was fit for duty.
Mr Gadzikwa provided DHS with a medical certificate that stated he was fit to perform “light duties”. Given the extended period of absence, DHS sought further specifics about Mr Gadzikwa’s ability to return to work.
DHS’ request for further information prompted an argumentative response, but limited additional information was provided.
In light of the ambiguous language contained in the medical clearance, DHS dismissed Mr Gadzikwa on the basis that it was unsatisfactory. Mr Gadzikwa lodged an unfair dismissal claim alleging that the information that he had provided was sufficient.
Decision
Fitness for work: When employers can reject a medical certificate | Moores
Deputy President Colman rejected the unfair dismissal claim and found that Mr Gadzikwa had failed to provide a sufficient medical clearance at the end of his authorised leave because the medical certificate:
- did not identify the nature of the duties that Mr Gadzikwa was and was not fit to perform;
- did not specify how long modifications to Mr Gadzikwa’s working arrangements would be required for;
- did not outline when Mr Gadzikwa could return to his ordinary position; and
- was submitted two weeks late.
The Commission was also satisfied that dismissal was not effected by any procedural unfairness or disproportionate to the relevant conduct.
Lessons for employers
- It may be lawful (and in fact appropriate) to reject a medical certificate if it provides insufficient information to enable the employer to provide a safe work environment for an employee, particularly after a long and largely unexplained absence from work.
- Employers should ensure that they provide employees with a reasonable opportunity to supply further and better particulars to support their medical certificate. See the Australian Medical Association Guidelines on Medical Certificates for further information on reviews of medical certificates that contain insufficient or incorrect information.
How we can help?
Employers should seek legal advice before rejecting a medical certificate, or dismissing an employee because it requires further information. While subjecting an employee to unreasonable requests for information about their disability could expose an employer to an adverse action or disability discrimination claim, allowing an employee to return to work without sufficient information on their fitness for duty or the modifications required may breach an employer’s OHS obligations.
For more information, or to speak with a member of our workplace relations team, please do not hesitate to contact us.